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ARIZONA STATE SENATE
Fifty-Fourth Legislature, First Regular Session
AMENDED
remote online notarization; registration
Purpose
Effective July 1,
2020, allows a notary public (notary) to perform a notarial act by means of an
electronic device or process for a notary and remotely located individual to
communicate with each other (remote online notarization). Outlines requirements
for registration,
record-keeping and identity verification for remote online notarizations. Requires
the Secretary of State (SOS) to establish rules and minimum standards for
remote online notarizations.
Background
The SOS appoints notaries to serve four-year terms. Notaries must submit an application with the SOS and file an official oath and bond in an amount determined by the SOS within 20 days of appointment (A.R.S. § 41-312). The powers and duties of a notary include taking acknowledgements, administering oaths and affirmations, performing jurats and performing certified copies. Notaries may only perform these duties if the signer is in the presence of the notary at the time of notarization and the instrument is signed in a language that the notary understands. Additionally, a notary must receive satisfactory evidence of the identity of the signer of an acknowledgement or jurat before notarization. Notarial acts performed by notaries verify only the identity of the signer of a document and not the truthfulness, accuracy or validity of the document (A.R.S. § 41-311). Additionally, notaries must provide and keep an official seal containing the notary's commission number and maintain a public-record journal of all official acts performed as a notary (A.R.S. § 41-313).
While commissioned, a notary must keep all records and journals of the notary's acts for at least five years. On resignation or revocation of a notarial commission, the notary seal, journal and public records must be delivered to the SOS. The SOS must keep the notary seal, journals and records for at least five years (A.R.S. § 41-317).
Notarial commissions, duties and acts may be performed electronically, and documents may be performed with an electronic signature. The SOS must adopt rules that establish standards for secure implementation of electronic notarization by January 1, 2020 (A.R.S. § 41-352).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Remote Online Notarizations
1. Allows a notary to perform remote online notarizations.
2. Specifies that a remote online notarization satisfies any statutory requirement for an individual to appear before or be in the presence of a notary at the time of performing a notarial act.
3. Requires a notary to chronologically record each remote online notarization in a permanent, tamper-evident electronic format that complies with SOS rules.
4. Requires each entry for a remote online notarization in a notary's electronic journal to include:
a) the date and time of the notarization;
b) a description of the record and type of remote online notarization;
c) the full name and address of each person for whom the remote online notarization is performed;
d) any fee charged by the notary; and
e) the following information relating to identification, depending on the method used for verification:
i. a statement acknowledging if the identity of the individual was based on personal knowledge;
ii. if the identity of the individual is based on credential analysis or identity proofing, a brief description of the results of any identify verification process and identification credential presented, including the date of issuance and expiration, but not including its serial number or identification number; or
iii. if the identity of the individual was based on an oath or affirmation of a credible witness, information relating to the verification of identity of the credible witness.
5. Prohibits a notary from recording a remote online notarization in the notary's paper journal.
6. Allows a notary to perform a remote online notarization for a remotely located individual located within the United States (U.S.).
7. Allows a notary to perform remote online notarizations outside of the U.S. only if:
a) the record:
i. will be filed with or relates to matters subject to an entity within U.S. jurisdiction; or
ii. involves property located within U.S. jurisdiction or a transaction substantially connected to the U.S.; and
b) the notary has no knowledge that the notarization is prohibited by the foreign country in which the remotely-located individual is located.
8. Requires a notary or person acting on the notary's behalf to create an audio and visual recording of the performance of each remote online notarization.
9. Requires a notary to take reasonable steps to:
a) ensure the integrity, security and authenticity of remote online notarizations;
b) maintain a backup of the electronic notarial journal and all audio and visual recordings; and
c) protect all backups and the notary's electronic seal from unauthorized use.
10. Requires any audio and visual recording and the notary's electronic journal to be retained for at least 5 years by the notary or a guardian, conservator, agent, personal representative or depository of the notary.
11. Specifies that termination of a notary's commission does not affect the retention requirement.
12. Specifies that the notary's electronic journal and audio and visual recordings of remote online notarizations are subject to the same public records requirements as notary journals and are not required to be provided to the SOS upon resignation.
13. Requires a notary to attach or logically associate the notary's electronic signature and electronic seal to the notarial certificate and electronic record for any remote online notarization in a tamper-evident format.
14. Requires the notary's electronic seal to be capable of being copied with the electronic record to which it was attached or associated.
15. Requires the process for attaching electronic signatures or seals to conform to SOS standards.
16. Specifies that the use of an electronic seal satisfies the requirement to authenticate the remote online notarization.
17. Allows a perceivable image of a notary's seal to be included on an electronic record, rather than an imprint of the seal.
18. Prohibits a notary from allowing the unauthorized use of the notary's electronic seal by another person.
19. Requires a notary to immediately notify the SOS and appropriate law enforcement agency of the theft or vandalism of an electronic seal or journal.
20. Requires a notary to notify the SOS of the loss or unauthorized use of the notary's electronic seal or journal.
21. Specifies that the use of an electronic seal does not violate the statutory requirement that a notary possess only one official seal.
22. Requires a notary to perform the following before executing a remote online notarization:
a) confirm
that the electronic record is the same electronic record in which the
remotely-located individual made a statement or executed a signature; and
b) take reasonable steps to ensure that the technology is secure from unauthorized interception.
23. Requires a notary to reasonably verify the identity of the remotely-located individual in a remote online notarization by:
a) the notary's personal knowledge of the remotely-located individual;
b) a presentation of satisfactory identification credentials; or
c) an
oath or affirmation of a credible witness with personal knowledge of the
remotely-located individual and appears before the notary through satisfactory
evidence of identity while in the physical presence of the notary or as a
remotely-located individual.
24. Allows a notary to:
a) require a remotely-located individual or witness to provide additional identification information; and
b) refuse to perform a remote online notarization if not satisfied with the identity verification of the remotely-located individual or witness.
25. Requires a notary to perform an identity check each time the notary performs a remote online notarization for the same remotely-located individual.
26. Requires the notarial certificate for remote online notarizations to indicate that the notarial act was performed by technology.
27. Requires a notarial certificate for remote online notarizations to:
a) comply with SOS standards and rules for remote online notarizations; or
b) be in a statutorily sufficient format and contain a statement specifying the use of technology.
28. Requires a notary whose commission is terminated or revoked, or the notary's personal representative or guardian, to destroy the coding, disk, software or other method that enables the notary to attach an electronic signature and seal to an electronic record.
29. Requires a notary to certify completion of the destruction of any coding, disk or software with the SOS.
30. Stipulates that a notary is not required to destroy electronic signature and seal data and access if the notary's commission is terminated for a reason other than revocation, denial or renewal and is recommissioned within three months of termination.
31. Stipulates that the failure of a notary to perform a duty or meet a statutory requirement for remote online notarizations does not invalidate the notarial act.
32. Allows an aggrieved person to seek to invalidate or seek other remedies relating to an electronic record or transaction from a remote online notarization.
33. Requires the validity of a remote online notarization to be determined by statute, regardless of the physical location of the remotely-located individual at the time of notarization.
34. Specifies that the requirements of this act modify, limit and supersede the federal Electronic Signature in Global and National Commerce Act, except for specified exemptions outlined in federal code, including court orders and notices.
SOS Rules and Guidelines for Remote Online Notarizations
35. Requires the SOS to adopt rules by July 1, 2020, to facilitate remote online notarizations, which must include:
a) sufficient forms of notarial certificates for remote online notarizations; and
b) standards for applications and registration, technology, credential analysis, identity proofing and retention of audio and visual recordings.
36. Permits the SOS to review and consider federal standards when establishing remote online notarizations standards.
Miscellaneous
37. Requires, rather than allows, a notary to keep a separate paper journal that contains entries that are not public records.
38. Specifies that if a notary keeps only one journal, that journal is presumed to be a public record.
39. Allows the SOS to require a notary to attend a notary training course instead of or in addition to a suspension of the notary's commission.
40. Prohibits a person whose application for a notary commission was denied from submitting a new application for a notary commission while an appeal on the denial is pending.
41. Prohibits a person that had a notary commission revoked from submitting a new application for a notary commission within one year of revocation.
42. Requires the SOS to provide notice to any person who was denied an application for a notary commission.
43. Specifies that the denial of an application for a notary commission is an appealable agency action.
44. Defines terms.
45. Makes technical and conforming changes.
46. Becomes effective on July 1, 2020.
Amendments Adopted by Committee
1. Removes application and registration requirements and instead requires the SOS to establish rules relating to applications and registration of remote online notaries.
2. Requires, rather than allows, a notary to keep a separate journal for all entries that are not public records and separate electronic journal for all remote online notarizations, which must include specified information.
3. Allows the SOS to require a notary to attend a notary training course.
4. Prohibits a person from submitting a new application for a notarial commission if an appeal on a denial is pending or if the notary had a commission revoked within one year.
5. Specifies that a denial of an application for a notarial commission is an appealable agency action and requires notice of a denial to be provided to the applicant.
6. Extends the effective date and SOS rulemaking deadline from January 2020, to July 2020.
7. Requires recordings and journals for remote online notarizations to be retained for 5 years, rather than 10 years.
Senate Action
GOV 2/4/19 DPA 7-0-0
Prepared by Senate Research
February 5, 2019
MH/kja